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Transcript

High Court to hand down Native Title ruling

AM Archive - Thursday, 8 August , 2002 00:00:00

Reporter:

LINDA MOTTRAM: Significant unresolved issues about native title in Australia are expected to be addressed this morning when the High Court hands down a ruling considered the most significant in the area since the Wik decision of 1996, which found that native title is not extinguished by pastoral leases.

Today's is an appeal decision in a case brought by the Miriuwung-Gajerrong people who claim a large area in the Kimberley region, which includes the Argyle diamond mine and the Ord River Project. And so the issue of mining leases and their impact on native title will be addressed.

Ahead of the ruling, I spoke to senior law lecturer Maureen Tehan, who teaches on native title law at Melbourne University Law School.

MAUREEN TEHAN: Well there are a very large number of issues before the court but the first and most fundamental question really goes to the nature of native title itself – whether it's, in a sense, a right to the land, a little bit like ownership of land or whether it's really just a series or bundle of particular use rights that people have.

And that fundamental or conceptual question really, then, will lead to probably particular outcomes in relation to other questions before the court on extinguishment of native title.

LINDA MOTTRAM: So are you saying that this decision will clarify matters about the fundamental nature of native title that were left undecided by previous decisions such as Wik?

MAUREEN TEHAN: Yes that's right. It'll try to fill in the gaps, if you like, about what the findings in Mabo and the subsequent judgement had failed to do. So it should in fact tell us a lot more about what the court says native title is.

LINDA MOTTRAM: Now it also has significant implications for the minerals issue doesn't it, which has not been decided by previous rulings.

MAUREEN TEHAN: No that's right. It's not been decided by the High Court and the question here is whether or not native title holders have rights in minerals or whether those rights have at some stage been extinguished by actions by the government?

And there are two possible ways in which that might have occurred, either by the governments over the years passing legislation claiming ownership of minerals themselves or as a result of grants of mining leases to particular developers or indeed perhaps by both parts of action.

LINDA MOTTRAM: Does this go to the question of whether states continue to have rights to minerals underground, that is a significant financial issue for them isn't it?

MAUREEN TEHAN: Well that could certainly be one of the possibilities. Although what it would in fact mean, I think, if native title was said to be held in minerals, would be that governments would have to rethink the ways in which they deal with minerals rather than deprive them entirely of a capacity to raise taxes or other payments as a result of minerals.

LINDA MOTTRAM: What are the implications immediately for the people who are claiming title on this land, should the decision go in their favour?

MAUREEN TEHAN: In many ways it will just restore the position that was the case before the Federal Court's decision but what it probably means is that there is a wider range of rights about which they can negotiate and wider areas of land about which they can negotiate under the future act provisions of the Native Title Act.

Because regardless of what happens in this decision, what will still be very clearly in operation will be the future act provisions of the Native Title Act which really regulate all activity on native title land.

LINDA MOTTRAM: So, are we looking here at a decision that is as wide ranging in its implications as Mabo was?

MAUREEN TEHAN: Mabo is the foundational decision, but this is really going to deal with a much broader range of questions in much greater detail. So in fact it is likely to make binding rulings on many more detailed questions and issues about native title than, in many respects, Mabo did.